Finnegan v. US Bank

Filing 5

ORDER Denying #2 Motion for Leave to Proceed in Forma Pauperis. Should Plaintiff wish to file an amended complaint curing the deficiencies noted above, Plaintiff must do so within thirty (30) days of the date of this Order. Signed by Judge Gonzalo P. Curiel on 4/28/21. (All non-registered users served via U.S. Mail Service, including blank IFP)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SEAN MATTHEW FINNEGAN,

Case No.: 21-cv-0620-GPC-BLM
Plaintiff,

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v.

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ORDER:

US BANK,

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(1) DENYING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS; AND

Defendant.

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(2) SUA SPONTE DISMISSING
COMPLAINT

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[ECF Nos. 1, 2]

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Plaintiff, proceeding pro se, filed a Complaint and subsequently filed a Motion to

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Proceed In Forma Pauperis (“IFP Motion”). ECF Nos. 1, 2. The Court DENIES

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Plaintiff’s IFP Motion and sua sponte DISMISSES the Complaint.

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PLAINTIFF’S IFP MOTION
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$402. See 28 U.S.C. § 1914(a) (discussing the $350 statutory fee and $52 administrative

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fee). The action may proceed despite this requirement only if the plaintiff is granted IFP

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status pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051

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(9th Cir. 2007). The plaintiff must submit an affidavit demonstrating plaintiff’s inability

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to pay the filing fee, and the affidavit must include a complete statement of the plaintiff’s

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assets. 28 U.S.C. § 1915(a)(1). The facts in the affidavit must be stated “with some

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particularity, definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940

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(9th Cir. 1981). When a plaintiff moves to proceed IFP, the court first “grants or denies

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IFP status based on the plaintiff’s financial resources alone and then independently

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determines whether to dismiss the complaint” pursuant to 28 U.S.C. § 1915(e)(2).

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Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984).
Here, Plaintiff supplied a form application to proceed IFP. ECF No. 2. However,

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the details provide no particularity, definiteness, or certainty as to Plaintiff’s financial

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status. Plaintiff left the majority of the form blank, with one line indicating that he

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receives a monthly income of $289.15. Id. at 2. The employment section indicates that

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Plaintiff is employed, but the gross monthly pay is listed as zero, which inherently makes

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little sense without further explanation. Id. Finally, Plaintiff alleges that “Bank is

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holding funds hostage,” id. at 5, but provides no explanation on the circumstances or

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what that statement even means. In sum, Plaintiff’s filing does not give the Court

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adequate information from which to determine whether he is unable to pay the $402 fee.

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Accordingly, the Court DENIES without prejudice Plaintiff’s IFP Motion, ECF

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No. 2. Should Plaintiff wish to proceed in this case, he must either pay the filing fee or

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provide a completed affidavit that shows his inability to pay the fee. Plaintiff is advised

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that Local Civil Rule 3.2(a) provides the requisite information to be included. The Court

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additionally DIRECTS the Clerk to provide Plaintiff with a blank copy of the Southern

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District of California’s “Motion and Declaration Under Penalty of Perjury in Support of

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Motion to Proceed In Forma Pauperis.”

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SUA SPONTE SCREENING
A complaint filed by any person proceeding IFP, pursuant to 28 U.S.C. § 1915(a),

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is additionally subject to mandatory sua sponte screening. The Court must review

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complaints filed by all persons proceeding IFP and must sua sponte dismiss any

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complaint, or any portion of a complaint, which is frivolous, malicious, fails to state a

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claim, or seeks damages from defendants who are immune. See 28 U.S.C. §

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1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining

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whether a complaint states a plausible claim for relief [is] . . . a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Id.

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The “mere possibility of misconduct” falls short of meeting this plausibility standard.

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Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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(“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to

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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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Section 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6).”).

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However, while the court “ha[s] an obligation where the Plaintiff is pro se, particularly in

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civil rights cases, to construe the pleadings liberally and to afford the Plaintiff the benefit

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of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v.

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Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements

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of claims that were not initially pled,” Ivey v. Bd. of Regents of the University of Alaska,

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673 F.2d 266, 268 (9th Cir. 1982).

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Moreover, the federal court is one of limited jurisdiction. Kokkonen v. Guardian

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Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It possesses only that power authorized

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by the Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S.

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534, 541 (1986). It is constitutionally required to raise issues related to federal subject

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matter jurisdiction and may do so sua sponte. Steel Co. v. Citizens for a Better Env’t, 523

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U.S. 83, 93–94 (1998); see also Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092

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(9th Cir. 1990).
Here, the Complaint is wholly deficient and fails to establish how this Court has

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subject matter jurisdiction. As a starting matter, there is no diversity jurisdiction. See 28

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U.S.C. § 1332(a). Plaintiff avers otherwise, but the Complaint indicates that both

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Plaintiff and Defendant are citizens of California. See Compl. 3–4, ECF No. 1.

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The only cause of action apparent in the Complaint is 15 U.S.C. § 1692d, which

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Plaintiff also claims is the basis for federal question jurisdiction. Section 1692d prevents

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a “debt collector” from engaging in any conduct “which is to harass, oppress, or abuse

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any person in connection with the collection of a debt,” and enumerates specific incidents

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of prohibited conduct, such as “use of violence” or “profane language,” see, e.g., 15

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U.S.C. § 1692d(1), (2).

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Yet no part of Plaintiff’s Complaint establishes how Defendant constitutes a “debt

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collector,” which is a specific term defined in 15 U.S.C. § 1692a(6). Further, Plaintiff’s

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Statement of Claim fails to demonstrate how Defendant’s alleged acts meet any of the

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prohibited conduct articulated in Section 1692d. Plaintiff’s conclusory remarks such as

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“harassing and abusing,” “The defendant is in breach,” “The defendant stole the entire

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balance,” or “for the fraudulent transaction the bank itself had conducted,” see Compl. 4,

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ECF No. 1, are all rejected pursuant to the standard for an adequate pleading, discussed

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supra pages 3–4 of this Order. In sum, the Court finds that the Complaint does not allege

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a colorable 15 U.S.C. § 1692d claim sufficient to invoke federal question jurisdiction.

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Cf. Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n.10 (2006) (“A claim invoking federal

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question jurisdiction . . . may be dismissed for want of subject-matter jurisdiction if it is

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not colorable, i.e., if it is ‘immaterial and made solely for the purpose of obtaining

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jurisdiction’ or is ‘wholly insubstantial and frivolous.’”).

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Because Plaintiff’s Complaint “fails to state a claim on which relief may be
granted,” 28 U.S.C. § 1915(e)(2)(B)(ii), and because the Court lacks subject matter
jurisdiction, the Court sua sponte DISMISSES the Complaint.

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CONCLUSION
For the reasons discussed above, the Court DENIES Plaintiff’s Motion to Proceed
In Forma Pauperis and sua sponte DISMISSES the Complaint.
Should Plaintiff wish to file an amended complaint curing the deficiencies noted

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above, Plaintiff must do so within thirty (30) days of the date of this Order. The Clerk

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of Court shall mail to Plaintiff a blank copy of the Southern District of California’s

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“Motion and Declaration Under Penalty of Perjury in Support of Motion to Proceed In

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Forma Pauperis.” Otherwise, the case will remain closed.

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IT IS SO ORDERED.

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Dated: April 28, 2021

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